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Safeguarding digital assets after death

Digital assets are often overlooked but the issue has become a significant one for millennials with broader and more comprehensive engagement online than older generations.

What happens to our Instagram, Facebook and Twitter accounts when we die?

Many people may not be aware they have digital assets and many more people would be unaware of their value. So how do you identify your digital assets and make provisions for them in your Will? This could be a significant question for millennials with broader, more comprehensive engagement than older generations, but it’s a growing need across the community and Canberra law firm DDCS Lawyers can help.

So, what are digital assets? The NSW Law Reform Commission defines them as “any item or text or media that has been formatted into a binary source and over which a person has some form of rights.”

They include:

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More good news for millennials: your high use of social media and other online activities in most cases means your digital assets would be more extensive than baby boomers.

A partner at DDCS Lawyers, Phil Davey, says yes, a person can secure their digital assets. But it’s a qualified yes. “That is because there are no current laws in Australia addressing the ability of family members or executors or fiduciaries to access a person’s digital assets,” he says.

“Privacy laws in terms of service agreements can directly impact how digital assets will be controlled and must be considered when planning for digital assets,” he says.

Mr Davey’s advice is to talk to a lawyer about creating a Will. “There are many reasons why access to digital assets upon death or incapacity is important, including:

Their financial value;

Their sentimental value;

Loss of “paper trails”;

Protecting privacy and confidentiality;

Reducing the risk of identity fraud, i.e. when an individual cannot continue to monitor their online accounts because of incapacity or death, it becomes easier for others to hack their accounts and impersonate the account holder.

Mr Davey says despite many legitimate reasons for seeking access to a person’s digital assets after their death or incapacity, family members and representatives can encounter significant practical difficulties.

“The first is that most people are not aware of what will become of their assets upon their death or incapacity and do not leave any record of what digital assets they have,” he says.

The NSW Trustee and Guardian suggests that only three per cent of Australians who have a Will had specifically decided what to do with their social media accounts in the event of death. As a result, third parties will not necessarily have permission to access another person’s digital assets, even if it is likely that the person would have wanted them to.

Mr Davey says other impediments to access can include: passwords and encryption, service agreements, laws prohibiting access, laws prohibiting content sharing. And privacy laws are likely to make access even more difficult in the future.

Mr Davey says becoming aware of their digital assets should prompt people, young people especially, to safeguard them over the long term. Talking to a lawyer about your Will is a good start. “Digital registers are an emerging approach to managing access to digital assets upon death,” he says.

“A digital register is an inventory of a person’s digital assets including those stored in online accounts and on devices on which they record their account numbers, usernames, and directions about what they want to be done with their digital assets. They may also appoint a “digital executor” to manage these assets.”